1. This petition under Article 226 of the Constitution of India has been filed with the following substantive prayers:-
8. The petitioner, therefore, most humbly prays that:-
(A) This Hon'ble Court may be pleased to admit and allow this petition.
(B) This Hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, order or direction, declaring that the impugned order dated 20.10.2010 is wholly unauthorized,, without any jurisdiction, illegal, improper and be pleased to quashed and set aside the same.
(C) This Hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, order or direction, to direction the Government to forthwith decide the application dated 2.12.2009 filed by the petitioner at Annexure-C.
(D) Be pleased to pass appropriate orders and/or directions against the respondent No.3 for having over-reached the process of the Hon'ble Court.
2. The facts of the case as appearing in the petition are that there are several reservoirs arising out of damming of rivers and rivulets resulting in larger water masses that can sustain fish. The Government has made a policy for granting leasing rights to the citizens who are engaged in the business of fishing and trading in fish. The petitioner was interested in doing the business of fishing and was eager to get a fishing contract in the year 2009. As per the policy of the Government, reservoirs which have area larger than 200 hectares in non-
tribal areas are to be treated as a class and fishing rights are to be given only after offering public tenders. The petitioner, who came to know that the previous fishing contracts were coming to an end in July, 2008, had been regularly approaching the authorities to inquire about the floating of tenders. The petitioner learnt that by an order dated 5th July, 2008, the respondent No.2 had personally directed grant of fishing lease to eleven parties and by order dated 4th August, 2008 to further forty seven parties without following the procedure of tender etc.
3. The petitioner, therefore, challenged the order dated 24th July, 2008 before this court by way of a writ petition being Special Civil Application No.9958 of 2008 and pointed out that the respondent No.2 had given away contracts to parties mentioned in the order on extraneous considerations. The petitioner had pointed out that in four cases the amounts for which annual contracts were granted were lower than the amounts granted in the earlier years. It appears that another writ petition being Special Civil Application No.10918 of 2008 had also been presented before this court challenging the contracts awarded without issuance of tenders. Both the aforesaid writ petitions came to be decided by a common judgment and order dated 29th September, 2008 whereby a Division Bench of this court held that the orders granting fishing contracts were clearly illegal and in violation of the Government policy and based on extraneous grounds.
4. The Government had thereafter floated tenders as per the directions of the High Court and fifty eight fresh contracts were given after following the procedure of tendering. The petitioner, thereafter, collected details regarding certain contract amounts which had been paid by the parties in case of twenty eight reservoirs as well as the earlier upset price. It is the case of the petitioner that from the said lease it can be seen that in respect of twenty eight dams, the Government was paid Rs.23,62,085/- in pursuance of the earlier contract which was struck down by the Division Bench whereas after the tender process was followed, the Government received Rs.4,46,80,577/-. Thus, even on an annual basis, the Government received Rs.42 crores more in ten years. It is the case of the petitioner that the respondent No.2 by his corrupt practice has caused a loss of Rs.60 crores to the Government which has been averted only because the petitioner had approached this court and this court had struck down the original illegal contracts which were given away at a throwaway price for an illegal and extraneous consideration.
5. In view of the aforesaid facts and circumstances, the petitioner made an application under section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') to the Chief Secretary, Government of Gujarat pointing out all the aforesaid facts and seeking sanction for filing appropriate case under the provisions of the said Act. It is further the case of the petitioner that prior to making the application, the petitioner had enquired with the parties in whose favour the respondent No.2 had granted fishing contracts earlier and had come to know that all of them had been asked to pay huge sums of money to the respondent No.2 and one such person namely Jeraji Monaji Pagi had made an affidavit to the effect that the respondent No.2 had asked him to pay Rs.30 lakhs in cash within a period of the first year and that he was given contract by an order dated 6th August, 2008 for a measly amount of Rs.2,96,946/- only for Vatrak reservoir. It has further been pointed out by the petitioner that after the tender process was followed, the said contract had been given at the annual rate of Rs.27,51,786/-.
6. As the Government failed to respond to the aforesaid application dated 2nd December, 2009 made by the petitioner under section 19 of the Act, the petitioner moved a writ petition before this court being Special Criminal Application No.38 of 2010 seeking a direction to the respondent No.1 to grant sanction under section 19 of the Act to prosecute the respondent No.2 under the provisions of the said Act. During the course of hearing of the said matter, the learned Additional Advocate General stated before the court that the application dated 2nd December, 2009 would be decided by the Chief Secretary, Government of Gujarat in accordance with law within eight weeks from the date of receipt of the order of this court. Based on the said statement, this court by its order dated 4th March, 2010 disposed of the petition accordingly.
7. Thereafter, the Chief Secretary did not decide the application as ordered and, therefore, the petitioner through his lawyer was constrained to give a notice of contempt dated 13th May, 2010. After receiving the notice of contempt, the respondent Government filed an application for extension/modification of the earlier order dated 4th March, 2010 in which the Government had sought modification of the earlier order by suggesting an inquiry committee to go into the allegations made by the petitioner and also for extension of six months' time. By an order dated 18th August, 2010, the said application for extension/modification came to be rejected.
8. It is further the case of the petitioner that despite the aforesaid order, the respondents still refused to decide the application dated 2nd December, 2009 and hence, the petitioner was constrained to file Criminal Miscellaneous Application No.10661/2010 before this court under section 10 of the Contempt of Courts Act. It appears that at the relevant time when this petition was filed, the said application was pending. However, subsequently, during the pendency of the petition, the Division Bench taking up contempt matters passed an order dated 29th December, 2010 in the following terms:
1. Affidavit in Reply filed on behalf of Respondent No.1, which is sworn by B.N.Shah, Deputy Secretary, Agricul- ture Department (Animal Husbandry), Government of Gu- jarat, Sachivalaya, Gandhinagar along with its Annexure, i.e. the communication dated 20.10.2010 sent by the Deputy Secretary to the Applicant shall be retained on re- cord of the case.
2. During the course of hearing, Mr. Kamal Trivedi, learned Advocate General for the Respondents, to make it more elaborate the contents made in paragraph 6 of the afore- said affidavit, states that the decision dated 28.9.2010 refusing the sanction for prosecution under the provisions of the Prevention of Corruption Act, 1988 against the Re- spondent No.3 herein, which has been taken at the highest level, means that, the decision has been taken by the Hon'ble Minister of State for Law and Justice, Hon'ble Minister of Agriculture, Law and Justice as well as Hon'ble Chief Minister of the State.
3. In view of the aforesaid statement made by Mr. Kamal Trivedi, learned Advocate General for the Respondents, Mr. Mukul Sinha, learned Advocate for the Applicant, upon instructions received from the Applicant, who is per- sonally present before the Court, does not press this Ap- plication and therefore appropriate order disposing of the application may be passed.
4. Mr. Kamal Trivedi, learned Advocate General for the Re- spondents states that since the Applicant does not press this Application, appropriate order disposing of the Ap- plication may be passed.
5. Hence, this application seeking contempt against the Re- spondent stands disposed of as it is not pressed for.
9. The petitioner thereafter received the impugned order dated 20th October, 2010 from the Deputy Secretary of the Agriculture and Co-operation Department rejecting the application of the petitioner. Being aggrieved, the petitioner has filed the present petition seeking the reliefs noted hereinabove.
10. In response to the averments made in the petition, the respondent No.3 – Deputy Secretary, Agriculture and Co- operation Department has filed an affidavit wherein it has been contended that the application dated 2nd December, 2009 submitted by the petitioner is not maintainable as the petitioner has no locus standi to file the said application. The said application is not maintainable on merits also for the content which does not constitute the requirement to initiate the proceedings against the respondent No.2. The respondent No.3 has communicated the order dated 28th September, 2010 in his capacity as Deputy Secretary, Agriculture and Co- operation Department of the State of Gujarat and has not done anything in his personal capacity. It is further stated that pursuant to the order dated 29th September, 2008 of the Division Bench of this court, appropriate consequential steps for terminating the lease granted in favour of the societies had been taken. It is further stated that neither in the petition nor in any of the pleadings the petitioner Shri Ishaq Maradia has ever contended that respondent No.2 had acted in any manner as to invite the provisions of the Prevention of Corruption Act. In fact, respondent No.2 was not even joined as party respondent in the above petition. It is further averred that the petitioner has never alleged that any illegal gratification or bribe is paid by him to respondent No.2 or that the same is demanded from him by the respondent No.2. That in the background of the aforesaid sequence of events which had taken place, it would be amply clear that at no point of time, the petitioner had in the earlier petition averred or alleged that the respondent No.2 has acted in any manner as to attract the provisions of the Prevention of Corruption Act. It is further stated that the petitioner has placed on record the affidavit of Pagi Jeraji Monaji dated 24th December, 2009 who was not the petitioner. Pagi Jeraji Monaji was granted contract of fishing by an order dated 6th August, 2008 which came to be terminated in view of the judgment and order of this High Court. Pagi Jeraji Monaji has stated in the affidavit dated 29th December, 2009 that he had gone to respondent No.2 and a demand of Rs.30 lakhs was made and only thereafter he had been given the contract. It is contended that Pagi Jeraji Monaji has not stated that any amount was ever paid by him and that if that was his case, he would not have remained silent for a long period of time. It is also averred that Pagi Jeraji Monaji had not made any representation, application or any complaint either to the State Government or to any authority or before the court and that he was not a bidder nor any contract is/was given to him in his individual capacity. Though the affidavit made by Pagi Jeraji Monaji is stated to have been affirmed by him on 24th December, 2009, the notary has signed the same on 24th November, 2009 which raises serious doubts about the authenticity and genuineness of the said affidavit. That on the basis of such an affidavit, the petitioner has based a case that the State Government has suffered a loss to the extent of Rs.45 crores by giving such contract and, therefore, respondent No.2 has taken illegal gratification and thereby invited the applicability of the provisions of Prevention of Corruption Act. It is further averred that the State Government by an order dated 18th May, 2010 had requested former Lokayukt and retired Judge of this court Shri S.M. Soni to give fact finding inquiry report on the complaint of the petitioner. That the former Lokayukt inquired into the matter after sending communications to the petitioner and Pagi Jeraji as also to other concerned officials. However, they neither appeared before the former Lokayukt nor did they submit any detailed information in support of their case. That on the basis of the material available and called for by the former Lokayukt and after considering the relevant record, the former Lokayukt submitted report on 16th August, 2010 wherein he has opined that there is no prima facie case against respondent No.2 for grant of sanction for prosecution under the provisions of the Act. It is further averred that the aforesaid report of the former Lokayukt was considered by the State Government at the highest level and as no prima facie case was established against the respondent No.2, the decision was taken to the effect that no sanction is required to be granted and that the said decision came to be communicated by the respondent No.3 vide letter dated 20th October, 2010.
11. Dr. Mukul Sinha, learned advocate for the petitioner assailed the impugned order dated 20th October, 2010 mainly on two grounds. Firstly, that there is no application of mind by the appropriate authority and secondly, that the Deputy Secretary, Agriculture and Co-operation Department who had passed the said order was not the appropriate authority under the Act to grant or refuse sanction under section 19 thereof. The attention of the court was invited to the facts of the case to point out the background in which the petitioner was seeking sanction to prosecute the respondent No.2 Minister. Reference was made to the averments made in the writ petition filed by the petitioner challenging the grant of contracts for reservoirs for the purpose of fishing directly to parties without issuance of tenders in accordance with the Government policy in this regard; as well as the decision of the Division Bench in the said writ petition whereby the contracts made in favour of parties without following the tender process came to be set aside and the Government was directed to cancel all such contracts made without following the said process as well as the observations made by the Division Bench while passing the said order. Attention was also invited to the affidavit made by Mr. Jeraji Monaji Pagi who was one of the beneficiaries of grant of fishing contract without following the tender process, wherein he has alleged that the respondent No.2 had demanded illegal gratification for award of the contract. It was submitted that thus, there was ample material on record to make out a prima facie case for granting sanction to prosecute the respondent No.2, whereas the respondent No.1 by placing reliance upon irrelevant material, namely report of a fact finding inquiry made by a former Lokayukt for the purpose of ascertaining whether or not there is a prima facie case, which is a concept alien to section 19 of the Act, has rejected the application.
11.1 It was further pointed out that on a plain reading of the impugned order it appears to be an order passed by the authority who has signed it, namely, the Deputy Secretary, Agriculture and Co-operation Department. It was pointed out that there is nothing in the order to indicate that the same has been passed by or is merely a communication of an order passed by some other authority. According to the learned counsel, the validity of the order has to be decided on the basis of the contents and not on the basis of an affidavit. It was contended that on a perusal of the impugned order there is nothing to show as to who is the competent authority under whose directions the same has been passed. It was urged that passing an order either granting or refusing sanction under section 19 of the Act is not a mere formality, and it is the authority concerned who has to sign the order himself. It was submitted that section 19 of the Act envisages an order granting or refusing sanction and the grant or refusal cannot be merely communicated without passing an order in that regard. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997) 7 SCC 622, for the proposition that since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. Referring to the affidavit-in-reply filed by the respondent No.2 and more particularly to the reproduction of the order dated 29th December, 2010 passed by a Division Bench of this court in Criminal Miscellaneous Application No.10661/2010, it was pointed out that according to the respondents, the decision refusing to grant sanction has been taken by the Hon'ble Minister of State for Law and Justice, Hon'ble Minister of Agriculture, Law and Justice as well as the Hon'ble Chief Minister of the State. It was submitted that even if the case of the respondents that it is the Chief Minister who is the appropriate authority to decide the application under section 19 of the Act were to be accepted, the application of mind should be of the sanctioning authority alone. It was submitted that here it is not the Chief Minister alone who has taken the decision but three ministers have together taken the decision. Thus, it is apparent that there was no independent application of mind by the Chief Minister as he was acting under the influence of the other two ministers. It was argued that if a person or a group of persons is statutorily empowered to do something and some other person not so empowered by the statute is permitted to do it, the order is bad. Therefore, in any view of the matter, the impugned order is bad and without jurisdiction.
11.2 It was also submitted that some other authority, which is alien to law is brought in, in the form of the former Lokayukt which is equally de hors the provision of the Statute. Referring to the impugned order, it was pointed out that ground (2) thereof wholly vitiates the impugned order. Reference was made to the latest decision of the Supreme Court in the case of Subramanian Swamy vs. Manmohan Singh and Another, (2012) 3 SCC 64, wherein the court has laid down various principles touching the grant of sanction under section 19 of the Act, to submit that the impugned order has been passed in breach of the principles laid down by the Supreme Court.
11.3 Referring to the provisions of section 19 of the Act, it was pointed out that sub-section (2) thereof makes it clear as to who is the sanctioning authority under section 19 of the said Act. It was pointed out that the present case would fall under clause (b) of sub-section (1) of section 19, that is, the court cannot take cognisance of the offence except with the previous sanction in the case of a person who is employed in connection with the affairs of a State and is not removable from his office either by or with the sanction of the State Government, of that Government. The attention of the court was invited to sub- section (2) of section 19 of the Act to submit that the competent authority is the person who is competent to remove such person from office. Referring to Article 164 of the Constitution, it was pointed out that in case of the Chief Minister or any Minister, the appointing authority is the Governor and the power of dismissal is also vested in the Government. It was accordingly submitted that in the case of a Minister or Minister of State the competent authority to grant sanction under section 19 of the Act is the Governor and not the Chief Minister. Reliance was placed upon the decision of the Supreme Court in the case of R. Balakrishna Pillai vs. State of Kerala and another, (1996) 1 SCC 478, wherein it has been held that by virtue of the provisions in the General Clauses Act, 1897, the expression “Government” used in section 197 would mean the Governor in the case of a Chief Minister or a Minister. It was, accordingly, urged that the impugned order passed by the respondent No.3 being without authority of law is required to be quashed and set aside and the matter is required to be remanded for a fresh decision by the competent authority.
12. Mr. P.K. Jani, learned Public Prosecutor addressed the court on the merits of the application made by the petitioner so as to demonstrate as to why no case has been made out for grant of sanction to prosecute the respondent No.2. However, as is apparent from the reliefs claimed in the petition, the petitioner has challenged the impugned order on the ground that the same has not been passed by the competent authority under section 19 of the Act and seeks a direction to the State Government to decide the same. Under the circumstances, it is apparent that the question as to whether or not this is a fit case for grant of sanction under section 19 of the Act does not arise for consideration in this petition, and hence, it is not necessary to delve into the merits of the application under section 19 of the Act. The court has, therefore, consciously not adverted to the same in detail.
12.1 The learned Public Prosecutor drew the attention of the court to the scheme of the Prevention of Corruption Act, 1988 to submit that in the facts and circumstances of the present case, no offence under sections 7 and 8 of the Act can be said to have been made out. It was pointed out that the petitioner has not lodged any first information report in connection with the alleged offence, to submit that the right to file a complaint under the Code of Criminal Procedure is available to any aggrieved person. However, only when the said complaint is inquired into and investigated and during the course of inquiry or investigation, it is found that a case against a particular person is made out then the investigating agency files a charge sheet. It was submitted that it is only at the stage when the court of competent jurisdiction is required to take cognizance of the offence that the question of grant of sanction arises, whereas in the facts of the present case, no case is made out for registering a case or even filing a complaint, consequently, there is no material to grant sanction for prosecution. No stage has come at any time or in any manner for the competent authority to grant sanction in the facts of the present case. It was urged that while it is necessary to prosecute persons guilty of having committed offences, there is an equal need to see that persons holding high public offices are not subjected to frivolous, vexatious and unwarranted prosecution by persons who have some axe to grind against them. It was argued that there can be no sanction without an offence and that in the facts of the present case, no offence has been made out. It was further pointed out that in the present case, since the allegations had been made against the respondent No.2 Minister, the State Government wanted to ensure that there is no injustice or discrimination to the petitioner and at the same time, no injustice to the person against whom sanction was sought and it was therefore that a fact finding inquiry was caused to be made by the former Lokayukt who had opined that there is no prima facie case. It was argued that in the absence of a prima facie case, there is no question of grant of sanction.
12.2 Next, it was submitted that the appointing authority in the case of a Minister is the Chief Minister. To buttress the said contention, reliance was placed upon the rules of business framed by the Government of Gujarat in exercise of powers under Article 166 of the Constitution, called the “Gujarat Government Rules of Business, 1990”. Reference was made to rule 2(b) of the said Rules which defines “Council” to mean the Council of Ministers constituted under Article 163; as well as to rule 2(c) which says that “Minister” includes the Chief Minister and the Deputy Chief Minister but does not include a Minister of a State or Deputy Minister. Reference was made to the commentary in a book titled 'Commentary on Cabinet Government' by Sir Ivor Jennings for the purpose of contending that it is the Prime Minister or the Chief Minister as the case may be who desires that a person should be a Minister in his cabinet or not and is the person of his confidence. It would be the prerogative of the Chief Minister to ask the minister to resign. It was submitted that in substance and in effect, so far as a minister is concerned, it is the Chief Minister who decides whether or not he should be a minister and that it is the Chief Minister who has the ultimate authority over the minister. Hence, it is the Chief Minister who is the competent authority for the purpose of grant or otherwise of sanction under section 19 of the Act in respect of a Minister. Referring to the decision of the Supreme Court in Subramanian Swamy v. Manmohan Singh (supra) it was submitted that in the said case the appellant therein had sought sanction of the Prime Minister and not the President. Thus, drawing an analogy, it would be the Chief Minister and not the Governor who would be the appropriate authority in the present case.
12.3 Referring to the decision of the Madhya Pradesh High Court in the case of Rajendra Kumar Singh vs. State of Madhya Pradesh and others, 1999 Cri. L.J. 2807 which had given rise to the decision of the Supreme Court in the case of M.P. Special Police Establishment vs. State of M.P. And Others, (2004) 8 SCC 788, it was submitted that in the facts of the said case, a fact finding authority had gone into all the details and the matter had come up for sanction and there was a formal complaint. Adverting to the facts of the present case, it was submitted that when the application under section 19 of the Act was made by the petitioner to the State Government, the State Government got an inquiry made through the former Lokayukt who had issued notice to the petitioner and Jeraji Pagi. However, they had not co-operated and not turned up during the course of the inquiry and that as per the inquiry report, there is no prima facie case for prosecution of the respondent No.2. It was argued that while considering whether or not sanction is required to be granted under section 19 of the Act, the satisfaction has to be of the appointing authority, who in the facts of the present case is the Chief Minister, who has found that this is a case where no sanction is required to be granted as there is no prima facie case. It was contended that there is a planned attempt on the part of the petitioner to implicate the respondent No.2 Minister in the prosecution and expose him in poor light in the public eye. In conclusion, it was submitted that a summary inquiry had been made by the former Lokayukt who had issued notice to the petitioner and the decision making authority, that is, the Chief Minister has taken a decision and that this court while exercising powers of judicial review would go into the decision making process and not on the merits of the decision. Under the circumstances, in exercise of powers under Article 226 of the Constitution of India, the court may not undertake such exercise on the merits of the sanction. It was also contended that precedents are not to be blindly followed and that the decision of the Supreme Court in M.P. Special Police Establishment (supra) is not a precedent as regards who is the appropriate authority for the purpose of granting sanction under section 19 of the Act in respect of a minister.
13. Mr. P.M. Thakkar, learned senior advocate appearing on behalf of the respondent No.2 Minister drew the attention of the court to the prayer clause in the petition to submit that the scope of the petition is limited to the prayers made in the petition and may not unnecessarily be expanded. It was submitted that the reliefs claimed in the petition are for a declaration that the impugned order dated 20th October, 2010 is wholly without any jurisdiction, illegal and improper and to quash and set aside the same and to direct the Government to forthwith decide the application dated 2nd December, 2009 filed by the petitioner. It was submitted that the issue as to who is the competent authority for the purpose of granting sanction under section 19 of the Act is not an issue raised in the present petition nor is any prayer made in this regard. Under the circumstances, such an important issue would not be decided by this court, unless it is raised and any relief is prayed for. It was submitted that even if the petition were to be allowed in terms of the reliefs prayed for, the relief that can be granted would be limited to a direction to the State Government to decide the application. However, stating that it is the Governor and not the Government who is the competent authority for deciding the said application, would amount to entering into a dispute which is non-existent in the pleadings of the parties.
13.1 Referring to the provisions of section 19(2) of the Act, it was submitted that in the present case, the applicable provision is clause (b) of sub-section (1) of section 19. Sub- section (2) of section 19 would operate only when there is a doubt as to who is the competent authority and that in the present case, since clause (b) of sub-section (1) of section 19 would be applicable, the question of resorting to sub-section (2) thereof does not arise. It was, accordingly, urged that if at all the court is inclined to allow the petition, it would be sufficient if directions are given using the language employed in section 19 of the Act with a further direction to decide in accordance with the principles laid down by the Supreme Court in Subramanian Swamy v. Manmohan Singh and Another (supra).
14. In rejoinder, Dr. Mukul Sinha, learned counsel for the petitioner submitted that looking to the categorical submissions advanced by the Public Prosecutor stating that on the merits of the application, no offence had been made out under section 7 and 8 of the Act; that it is the Chief Minister who is the competent authority to decide the application seeking grant of sanction; and that the competent authority has already taken a decision on merits; there is every likelihood of bias and, therefore, in fairness and for purity of administration, it is the Governor who should take the decision. It was submitted that the Supreme Court has squarely approved that in a case like the present one, the Governor can exercise his own discretion and grant sanction.
15. As regards the contention that the petitioner ought to have lodged a first information report or a private complaint before seeking sanction under section 19 of the Act, the learned counsel submitted that the petitioner had an option under section 17 of the Act to approach the concerned authority mentioned therein for investigating into the offence; the second option was to go before the special court and make a private complaint; and the third option is that he could seek an inquiry by the court itself for which he needs sanction to get the summons issued. It was contended that merely because the petitioner has chosen to exercise the third option does not make the application under section 19 unauthorised or premature. It was urged that the impugned order having been passed in contravention of the principles laid down by the Supreme Court in this regard, as well as having been decided by an officer who had no authority to do so, deserves to be quashed and set aside and the State Government is required to be directed to decide the application in accordance with law as expeditiously as possible.
16. Insofar as the basic facts are concerned, the same are not in dispute, namely, that the petitioner herein had filed a petition being Special Civil Application No.9958 of 2008 challenging the grant of fishing contracts in the reservoirs of the State of Gujarat to certain co-operative societies without following the tender process. The said petition came to be allowed by a judgment and order dated 29th September, 2008 passed by a Division Bench of this court, by holding that the impugned contracts of fishing lease have been granted arbitrarily and that the concerned respondent Societies had been shown undue favour for extraneous reasons. The court, accordingly, quashed and set aside the impugned contracts of fishing lease granted to the concerned societies and further directed the respondent authorities to grant fishing lease in respect of the concerned reservoirs by tender process as set out in the Government Resolution dated 25th February, 2004. Thereafter, the petitioner after collecting information as regards the amount for which the contracts had been awarded earlier and the amount for which the contracts were awarded by following the tender process, and other details, made the above referred application dated 2nd December, 2009 under section 19 of the Act seeking sanction to prosecute the respondent No.2. Since there was no response to the said application, the petitioner filed a writ petition before this court being Special Criminal Application No.38 of 2010. On 4th March, 2010, a statement was made before this court in the said case that the representation dated 2nd December, 2009 shall be decided by the Chief Secretary in accordance with law within eight weeks thereof, pursuant to which the court disposed of the petition with a direction to the Chief Secretary to decide the application within eight weeks from the date of receipt of the said order. Thereafter, instead of deciding the said application within the time limit stipulated by the High Court, the State Government by an order dated 18th May, 2007 requested the former Lokayukt and retired Judge of this court, Shri S.M. Soni to give a fact finding inquiry report on the complaint of the petitioner. It was only after the report of the fact finding authority that the application made by the petitioner came to be decided. In the meanwhile, prior to taking the aforesaid decision, the respondent No.1 – State Government moved an application being Criminal Miscellaneous Application No.5434/2010 to modify the oral order dated 4th March, 2010 and to extend the time limit by six months so as to enable the State Government to take appropriate decision in the matter. It appears that one of the contentions raised in the said application was that the Chief Secretary is not the competent authority to take a decision on an application seeking sanction to prosecute a minister under section 19 of the Act. Thus, after a period of about five months from the date of passing of the initial order dated 4th March, 2010, it dawned upon the State Government that it was not the Chief Secretary, but some other authority, that was competent to take a decision on the application made by the petitioner. Thereafter, by the impugned order dated 20th October, 2010, the petitioner has been communicated that his application has been rejected.
17. Since the validity of the impugned order dated 20th October, 2010 had been called in question, it may be germane to refer to the contents thereof which, as translated into English, reads thus:-
No.FDV/112010/238/T Government of Gujarat Agriculture and Cooperation Department Block No.5/2nd floor, Sardar Patel Bhavan, Sachivalaya, Gandhinagar – 382 010. Date: 20/10/2010 To, Shri Ishaq Mohammad Maradia, Post – Bhagal (J.), Taluka Palanpur, Dist. Banaskantha Subject: In the matter of application under section 19 of the Prevention of Corruption Act, 1988.
Sir, In the context of the above subject, as per directions you are informed that considering the facts stated in your application dated 2/12/2009 for the following reasons your request to give sanction under the provisions of section 19 of the Prevention of Corruption Act, 1988 to prosecute the Hon'ble Minister of State Shri Purushottambhai Solanki is rejected.
(1) In the petition filed before the High Court, at the relevant time there is no mention as regards demand of money.
(2) Retired Gujarat High Court Judge Shri S.M. Soni in his fact finding inquiry carried out in this case has come to the conclusion that the demand for payment of money has not been proved.
(3) Despite opportunities having been granted during the course of the fact finding inquiry, you and the maker of the affidavit Shri Jeraji Monaji Paghi had not remained present.
(4) Out of the 58 societies, no other society has made any allegation.
Thus, considering the case in its entirety, there do not remain any ponderable issues for the purpose of grant of prosecution. Hence, your application is being rejected. You are requested to take note of the same.
Yours faithfully, (Bakul Shah) Deputy Secretary (Water Supplies/Fisheries) Agriculture and Cooperation Department
18. The validity of the impugned order has to be tested in the light of the provisions of section 19 of the Act. Section 19 of the Act does not prescribe any particular form or format in which an order granting or refusing sanction has to be passed. However, it is well settled that the executive action of the Government of a State must be taken in accordance with and as per the procedure laid down in Article 166 of the Constitution of India. Article 166 of the Constitution of India reads thus:-
“166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”
In other words, except in cases where the Governor in his individual discretion exercises his constitutional functions, the other business of the Government is required to be conveniently transacted as per the business rules made by Article 166(3) of the Constitution. In exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India, the Governor of Gujarat had made rules called “The Gujarat Government Rules of Business, 1990”. Rule 12 and 13 of the said Rules which are relevant for the present purpose read thus:-
“12.All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made by or by order of or executed in the name of the Governor.
13.Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary, an Assistant Secretary or a Section Officer or by such other officer as may be Specially empowered in that behalf by the Government and such signature shall be deemed to be the proper authentication of such order or instrument.”
19. The next question that arises for consideration is as to whether the impugned order meets with the requirements of Article 166(1) and (2) of the Constitution. The Supreme Court in a catena of decisions has held that Article 166 (1) and (2) are directory and substantial compliance of those provisions is sufficient. In Major E.G. Barsay v. State of Bombay, (1962) 2 SCR 195, the Supreme Court after referring to its earlier decisions in this regard held thus:
“The foregoing decisions authoritatively settled the true interpretation of the provisions of Article 166 of the Consti- tution. Shortly stated, the legal position is this: Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aluende that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authentic- ated in the manner prescribed in Rule (2) of the said Article, there is an irrebuttable presumption that the order or instru- ment is made or executed by the Governor. Any non-compli- ance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebut- table presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority. Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Article 166 and the same principles must govern the interpretation of that provision.”
20. Examining the impugned order in the light of the aforesaid statutory provisions, ex facie, the said order refusing to give sanction does not even purport to have been issued in the name of the State Government or the Governor. Thus, apart from the fact that the impugned order is not authenticated in the manner prescribed under rule 12 of the Rules, it is also not possible to state that there is substantial compliance thereof inasmuch as there in nothing in the order to indicate that the said order has been passed by or on behalf of or in the name of the Governor or that it has been passed by the State Government. Though the order says “as per directions you are informed”, it does not say as to under whose directions. It may also be noted that apart from the fact that the impugned order does not reveal as to under whose directions it has been made, nothing has been stated in the affidavit filed by the respondent No.3 Deputy Secretary as to under whose instructions it had been passed, nor has it been stated that, on file, the decision has been taken by the Chief Minister. Thus, except for the oral submissions advanced by the learned Public Prosecutor that it is the Chief Minister who is the competent authority in the present case, no material has been placed before this court to demonstrate that the impugned order has, in fact, been passed by the Chief Minister and that the same has only been issued under the signature of the Deputy Secretary as contemplated under rule 12 of the Rules. The impugned order, therefore, remains merely an order of the Deputy Secretary, Agriculture and Co-operation Department or a communication of an order made by some unknown person. It is nobody's case that the Deputy Secretary was competent to accord sanction on behalf of the Governor and that he gave sanction in exercise of the power conferred on him. The Deputy Secretary, therefore, had no power to accord sanction in his own right. Thus, the impugned order is clearly passed in excess of the authority and jurisdiction of the Deputy Secretary.
21. It has been contended on behalf of the respondent No.1 – State Government that it is the Chief Minister who is the sanctioning authority. In this regard, it may be noted that even if the Chief Minister were the sanctioning authority, the order under section 19 would be an order of the State Government and as such, would be required to be expressed to be made by or by the order of or executed in the name of the Governor. Though there is no specific format in which sanction may be granted or refused, it is well settled that a sanction order has to be passed after due application of mind by the competent authority. Thus, even if the order may not be signed by the competent authority, that is, the Chief Minister or the Governor as the case may be, the order should reflect that the concerned competent authority has applied his mind and passed the order which is so signed by the concerned Secretary who is so empowered under rule 13 of the Business Rules. In the present case, apart from the fact that the impugned order does not express that the same has been made by or on behalf of or executed by the Governor, the same is also totally silent as to who is the authority who has applied its mind and refused to grant sanction. It may also be noted that no attempt has been made by the respondent No.1 State Government to show, either by filing an affidavit in that regard or by reference to the original files, that the impugned order has in fact been made by the appropriate authority.
22. The only indication as regards the authority which has passed the impugned order comes from the order passed by a Division Bench of this court in the contempt proceedings, wherein it was stated before the court that the decision was taken at the highest level by the Minister of State for Law and Justice, Minister of Agriculture, Law and Justice and the Chief Minister. Thus, though it has been contended by the learned Public Prosecutor, that the Chief Minister is the competent authority to decide on the question of sanction under section 19 of the Act in respect of a minister, evidently the decision has not been taken by the Chief Minister alone. Thus, even if all other deficiencies regarding non-compliance of rule 12 of the Rules, etc. are ignored, and it is accepted that the Chief Minister is the competent authority, even then, the impugned order does not satisfy the requirements of section 19 of the Act as the same has not been passed by the Chief Minister on an independent application of mind to the relevant material. The Supreme Court in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat (supra) has held thus:
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evid- ence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanc- tion must ex facie disclose that the sanctioning authority had considered the evidence and other material placed be- fore it. This fact can also be established by extrinsic evid- ence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab, AIR 1958 SC 124 and State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222.)
19. Since the validity of “sanction” depends on the applic- ability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning au- thority has to apply its own independent mind for the gener- ation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanc- tioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.
Assuming that the Chief Minister is the sanctioning authority, in the facts of the present case an external force, namely the other two ministers, was acting upon the sanctioning authority to take a decision one way or the other. The order, if any, passed by the Chief Minister, therefore, stands vitiated as on the facts of the present case it is apparent that he was unable to apply his independent mind to the question regarding grant or otherwise of the application seeking sanction to prosecute the respondent No.2.
23. The next question that arises for consideration is as to who is the competent authority to decide on the question of grant of sanction in respect of a minister, be he a Cabinet Minister or a Minister of State. On behalf of the respondent No.2, it has been contended that the said issue does not arise for consideration in the facts of the present case, as the same has neither been raised nor pleaded by the petitioner in the petition and as such, is beyond the scope of the present case. Mr. P.M. Thakkar, learned counsel for the respondent No.2 is right when he contends that the scope of the petition is limited to the prayers made in the petition. However, as can be seen from the submissions made by the learned Public Prosecutor, he has argued the matter extensively, touching almost all aspects of the matter. As noticed earlier, before the Division Bench in the contempt proceedings, it was pointed out that the decision on the petitioner's application under section 19 of the Act had been taken by the Chief Minister, the Minister of State for Law and Justice and the Minister of Agriculture, Law and Justice. Besides, by referring to the Commentary on Cabinet Government by Ivor Jennings on dismissal of ministers, etc., the learned Public Prosecutor has asserted that it is the Chief Minister who is the competent authority for deciding the question of grant of sanction. The said contention has been controverted by the learned counsel for the petitioner, who, by placing reliance upon the decision of the Supreme Court in R. Balakrishna Pillai (supra) has contended that it is the Governor who is the competent authority in the present case. Thus, both the parties are at issue on the question as to who is the competent authority to decide an application under section 19 of the Act, where sanction is sought to prosecute a minister.
24. As noted earlier, in the previous petition filed by the petitioner, a statement had been made by a person no less than the Additional Advocate General of the State on behalf of the Chief Secretary, both of whom can be presumed to have made the statement with due responsibility and in all seriousness and sincerity and with due knowledge as regards who would be the competent authority in the present case. Thus, at that stage, a particular stand had been adopted by the State Government. Subsequently, in a complete U-turn, it has been stated that the Chief Secretary is not the competent authority. Though there is no averment made in the affidavit-in- reply as to who is the competent authority for deciding an application under section 19 of the Act in the case of a Minister, now before this court, it is contended that the Chief Minister is the competent authority. However, the order dated 29th December, 2010 passed by the Division Bench in contempt proceedings, discloses that the decision has not been taken by the Chief Minister alone, but by three ministers, including the Chief Minister. Thus, evidently, the State Government is not clear as to who is the competent authority in the present case.
25. Besides, considering the chequered history of the present case, as narrated hereinabove, though a period of more than two years have elapsed since the petitioner made the application under section 19 of the Act on 2nd December, 2009, the same is yet to be decided by the competent authority. Under the circumstances, considering the stand taken by the State Government in the present case, it is apparent that if the said question is not decided, the same would only lead to another round of litigation, thereby needlessly prolonging the matter. Moreover, in the aforesaid backdrop, one fails to see as to how a decision on the question as to in the facts of the present case who is the competent authority to take a decision under section 19 of the Act, would prejudice either of the parties. It is not as if the court is pronouncing on the merits of the application or on the question as to whether sanction is required to be granted. In the aforesaid factual background, the court is of the view that the said issue does arise for consideration in the light of the contentions raised by the respective parties. The court is firmly of the belief that in the light of the wavering stand adopted by the State Government as regards who is the competent authority in the present case, it would be in the interest of justice if the matter is put to rest by adjudicating the same.
26. The question as to who is the competent authority in the case of a minister came up for consideration before the Supreme Court in R. Balakrishna Pillai vs. State of Kerala and Another (supra) wherein the Supreme Court held thus:-
“5. A Constitution Bench of this Court in M. Karunanidhi v. Union of India was required to consider whether a Chief Minister was a public servant within the meaning of Section 21 of the Indian Penal Code and Section 197 of the Code. This Court referred to the decision of the High Court of Bombay in Namdeo Kashinath Aher v. H.C. Vartak and extracted the following passage therefrom:
“Whatever be the practical and actual position, the fact remains that it is the Governor who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove the Minister from office. Under Section 3(60) of the General Clauses Act, 1897, the word 'State Government' has been defined. Clause (c) of Section 3(60) is applicable to the present case and therefore the State Government is to mean the Governor for the purpose of the present case. The result therefore is that Accused 1 is a public servant who can be said to be removable only by the State Government, meaning thereby the Governor, and I do not find any difficulty in coming to the conclusion that the second requirement of Section 197, CrPC also is fully satisfied as far as Accused 1 is concerned.”
Taking note of the provisions of Article 167 (Article 164 for Ministers), it was pointed out that the Chief Minister is paid from public exchequer for performing a public duty and is, therefore, a public servant within the meaning of Section 197 of the Code. So also a Minister of a State is paid from its public exchequer. He is paid for doing the duty entrusted to him as a Minister and, therefore, on the analogy of the observations relating to the Chief Minister, the Minister must also be held to be a public servant. Since he is appointed or dismissed by the Governor, he would fall within the expression “a public servant not removable from his office save by or with the sanction of the Government”. In the instant case, as pointed out earlier, by virtue of the provisions in the General Clauses Act, 1897 the expression 'Government' used in Section 197 would mean the Governor in the case of a Chief Minister or a Minister. That being so, we are of the opinion that a Minister would be entitled to the protection of Section 197(1) of the Code.”
Thus, the said decision lays down that expression “Government” in section 197 of the Code means the Governor in case of a Chief Minister or a Minister. On behalf of the respondent No.2, it has been contended that the scope and ambit of section 197 of the Code and section 19 of the Act are different and that the present case falls within clause (b) of sub-section (1) of section 19 of the Act and that there being no ambiguity as regards who is the competent authority, there is no warrant for resorting to the provisions of sub-section (2) of section 19 to ascertain as to which authority has the power to remove the person in respect of whom sanction to prosecute is sought. It may, therefore, be germane to refer to the provisions of section 197 of the Code and section 19 of the Act which insofar as the same are relevant for the present purpose read thus:
“197. Prosecution of Judges and public servants.-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
“19. Previous sanction necessary for prosecution.-
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub- section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
xxx xxx xxx Explanation.- For the purposes of this section -
(a) error includes competency of the authority to grant sanction ;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
27. On a conjoint reading of the aforesaid provisions, the distinction sought to be drawn by the learned counsel for the respondent No.2 is not discernible. Both the sections provide that in case of a public servant not removable from his office save by or with the sanction of the Government, no court shall take cognizance of any offence of the nature specified therein except with the previous sanction, in the case of a person who is employed in connection with the affairs of the Union of India, of the Central Government and in case of a person who is employed in connection with the affairs of a State, that State Government. Thus, the distinction sought to be drawn by reference to sub-section (2) of section 19 would be of no avail and the decision of the Supreme Court in R.
Balakrishna Pillai vs. State of Kerala and Another (supra) would be squarely applicable to the facts of the present case. It may be noted that the Supreme Court in J. Jayalalitha v. M. Chenna Reddy and Others, (1998) 8 SCC 601, has observed thus:
“ 1. Having heard learned counsel, we are of the view that an issue of constitutional importance is raised in these matters and they should be heard by a Bench of 5 learned Judges.
2. Shortly put, the submission on behalf of the Chief Minister of the State of Tamil Nadu and the State of Tamil Nadu is that the Governor of the State was not the appropriate authority to grant sanction for the prosecution of the Chief Minister under the provisions of Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, and that, assuming that he was, he was not entitled to decide whether or not to grant sanction only upon the basis of his discretion: he could do so only upon the advice of the Council of Ministers other than the Chief Minister.
3. A decision is sought upon this issue also by the States other than the State of Tamil Nadu.
4. While we think that it is appropriate to refer the matters to a Constitution Bench, we should point out that no delay can be brooked for the Chief Minister continues to remain in office, no prosecution having been launched against her by reason of the stay order of this Court.
5. The papers shall be placed before the Hon'ble the Chief Justice for appropriate directions.
6. Parties shall be at liberty to mention the matter to the Hon'ble the Chief Justice.
7. All applications for intervention in these matters may be considered by the Constitution Bench.”
28. Subsequently, though not in the said case, but in M.P. Special Police Establishment vs. State of M.P. and others (supra), a Constitution Bench of the Supreme Court was called upon to decide as to whether the Governor can act in his discretion and against the aid and advice of the Council of Ministers in a matter of grant of sanction for prosecution of ministers for offences under the Prevention of Corruption Act and/or under the Indian Penal Code. A perusal of the judgment of the M.P. High Court from which the said judgment emanated shows that one of the contentions raised therein, in paragraph 20 thereof, was that when section 197 of the CrPC, uses the expression “State Government”, by no stretch of imagination the expression “State Government” can be read to mean Governor. The Supreme Court in its decision held thus:-
“12. xxx xxx xxx .
xxxx a seven-Judge Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognised that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognised that there may be situations where by reason of peril to democracy or democratic principles, an action may be compelled which from its nature is not amenable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.”
“14. As has been mentioned above, the Division Bench had noted this case. The Division Bench, however, held that even though this principle may apply to the case of a Chief Minister, it cannot apply to a case where Ministers are sought to be prosecuted. We are unable to appreciate the subtle distinction sought to be made by the Division Bench. The question in such cases would not be whether they would be biased. The question would be whether there is reasonable ground for believing that there is likelihood of apparent bias. Actual bias only would lead to automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias has now taken a tilt to “real danger of bias” and “suspicion of bias”. xxx.”
“19. xxxx. Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise while considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.”
“23. ... ... ... However, as stated above, unless a situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. Taking a cue from Antulay, it is possible to contend that a Council of Ministers may not take a fair and impartial decision when their Chief Minister or other members of the Council face prosecution. But the doctrine of “apparent bias”, however, may not be applicable in a case where a collective decision is required to be taken under a statute in relation to former Ministers. In a meeting of the Council of Ministers, each member has his own say. There may be different views or opinions. But in a democracy the opinion of the majority would prevail.”
“30. It is well settled that the exercise of administrative power will stand vitiated if there is a manifest error of record or the exercise of power is arbitrary. Similarly, if the power has been exercised on the non-consideration or non-application of mind to relevant factors the exer- cise of power will be regarded as manifestly erroneous.
31. We have, on the premises aforementioned, no hes- itation to hold that the decision of the Council of Minis-
ters was ex facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ court while exercising its jurisdiction under Article 226 of the Constitution as also this Court under Articles 136 and 142 of the Constitution can pass an appropriate or- der which would do complete justice to the parties. The High Court unfortunately failed to consider this aspect of the matter.
32. If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where a prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.
33. ... ... ... Certainly, the Council of Ministers has to first consider grant of sanction. We also presume that a high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law. However, on those rare occasions where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction.”
29. Thus, on a conjoint reading of the above referred decisions of the Supreme Court, it is apparent that in the case of a Chief Minister or a Minister, the expression ”Government” used in section 197 as well as section 19 would mean the Governor. However, as held by the Supreme Court in M.P. Special Police Establishment v. State of M.P. and others (supra), the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary thereto. Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on the aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute the Chief Minister or a Minister where as a matter of propriety, the Government may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself. The Council of Ministers has to first consider grant of sanction and it would normally be presumed that a higher authority like the Council of Ministers will normally act in a bonafide manner, fairly, honestly and in accordance with law. However, on those rare occasions where on facts, the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of the said case, to act in his own discretion and grant sanction.
30. As regards the contention raised by the learned Public Prosecutor that in Subramanian Swamy v. Manmohan Singh (supra), the appellant had sought sanction from the Prime Minister and not the President and hence in the present case also the appropriate authority would be the Chief Minister and not the Governor, the same deserves to be stated only to be rejected. A perusal of the above decision of the Supreme Court shows that the question as regards who is the competent authority to grant sanction to prosecute was never in issue in the said case. It is trite that a decision is a precedent for the law that it lays down. In Subramanian Swamy v. Manmohan Singh, the question before the Supreme Court was whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988 and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause (I)(15) of the directions contained in para 58 of the judgment of the Supreme Court in Vineet Narain v. Union of India, (1998) 1 SCC 226 and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC). Thus, the said decision is not a precedent on the question as to who is the competent authority for the purpose of granting sanction under section 19 of the Act in the case of a Minister.
31. As regards the contention that the stage for seeking sanction to prosecute the respondent No.2 has not yet arrived as no first information report or complaint has been lodged, in the opinion of this court, it does not behove the Government to adopt such a stand, as the same would amount to backtracking from the earlier statement made before this court in Special Criminal Application No.38 of 2010. The said contention is even otherwise misconceived in law. The Supreme Court in Subramanian Swamy v. Manmohan Singh (supra) has repelled a similar argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that, on the ground that the same is neither supported by the plain language of the section nor the judicial precedents relied upon by him.
32. Another aspect of the matter is that in the impugned order, strong reliance has been placed upon the fact finding inquiry report submitted by the former Lokayukt, which in fact forms the basis of the said order. The Supreme Court in Subramanian Swamy v. Manmohan Singh (supra) held that the following guidelines framed by the CVC:
“2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the of- fence.
(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of repres- entation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the re- cord/report of his department.
(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, enter- tains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may re- quest the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.
(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to ad- here to the time limit allowed by the Supreme Court in Vin- eet Narain's case.”
were in conformity with the law laid down by the Supreme Court that while considering the issue regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. Adverting to the facts of the present case, the competent authority was, therefore, required to take a decision on the application made by the petitioner on the basis of the material produced by him and could not have held a parallel inquiry by calling for a report of a fact finding inquiry. Thus, reliance placed upon the report made by the former Lokayukt is not in consonance with the provisions of section 19 of the Act and the law laid down by the Supreme Court in this regard. Thus the said report could not have been relied upon while deciding the application made by the petitioner, leave alone form the basis of the impugned order.
33. It may also be noted that though the learned Public Prosecutor has advanced contentions on the merits of the application under section 19 of the Act, this court has refrained from adverting to the said contentions and dealing with the same since the competent authority is yet to take a decision on the said application and any observation made by this court on the merits of the said application would have a direct bearing on the ultimate outcome of the said application.
34. To summarize:
(1) The impugned order dated 20th October, 2010 does not meet with the requirements of Article 166 (1) and (2) of the Constitution of India as well as rule 12 of the Gujarat Government Rules of Business, 1990 and is merely an order passed by the Deputy Secretary, Agriculture and Co-operation Department in his own right, or a communication issued under the directions of an unknown person, and therefore, without any authority of law.
(2) The impugned order is also bad on the ground that the same has been passed on the basis of irrelevant material namely, the report of a fact finding authority. As held by the Supreme Court in Subramanian Swamy vs. Manmohan Singh (supra), while considering the issue regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.
(3) In the case of a Chief Minister or a Minister, be he, a Cabinet Minister or a Minister of State, the expression “State Government” in section 19 of the Prevention of Corruption Act, 1988 would mean “the Governor”.
(4) However, unless a situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. It is the Council of Ministers who has to first consider grant of sanction.
(5) As observed by the Supreme Court in M.P. Special Police Establishment vs. State of M.P. and others (supra) a high authority like the Council of Ministers will normally act in a bonafide manner, fairly, honestly and in accordance with law. However, on those rare occasions, where on facts, the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrelevant and based on non-consideration of relevant factors, the Governor would be right on the facts of the case to act in his own discretion and grant sanction.
35. In the light of the aforesaid discussion, the petition succeeds and is accordingly allowed. The impugned order dated 20th October, 2010 passed by the respondent No.3 – Deputy Secretary is hereby quashed and set aside as being without authority of law. The application dated 2nd December, 2009 made by the petitioner shall stand restored to file and shall be decided afresh in accordance with law. While doing so, the time limit of three months for grant of sanction for prosecution as held by the Supreme Court in Vineet Narain vs. Union of India, 1998 (1) SCC 226 must be strictly adhered to. While considering the issue regarding grant or refusal of sanction, the State Government shall also keep in mind the guidelines laid down by the Supreme Court in Subramanian Swamy vs. Manmohan Singh (supra) as well as the principles laid down by the Supreme Court in M.P. Special Police Establishment vs. State of M.P. and others (supra). Rule is made absolute accordingly with no order as to costs.
( Harsha Devani, J. ) hki